Citation Nr: 0004553
Decision Date: 02/22/00 Archive Date: 02/28/00
DOCKET NO. 98-15 051 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to recognition as surviving spouse of the veteran
for purposes of Department of Veterans Affairs death
benefits.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran served on active duty from July 1971 to June
1972. He died in December 1997. This is an appeal from an
April 1998 decision by the Department of Veterans Affairs
(VA) Regional Office (RO), Detroit, Michigan, that the
appellant was not entitled to recognition as surviving spouse
of the veteran for purposes of VA death benefits.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the regional office.
2. The appellant and veteran underwent a marriage ceremony
in November 1994 in the State of Michigan.
3. At the time of the marriage ceremony the veteran was
mentally incompetent. In 1996 a state county court
determined that the veteran was mentally competent.
4. The appellant and veteran separated in March 1996 and did
not thereafter reside together except for brief periods.
They were separated at the time of the veteran's death.
5. The appellant was at fault in causing the separation.
The separation was not procured by the veteran or due to his
misconduct.
CONCLUSION OF LAW
The appellant was not without fault in the separation between
herself and the veteran. Thus, she is not entitled to
recognition as the veteran's surviving spouse for purposes of
VA death benefits. 38 U.S.C.A. §§ 101(3), 5107 (West 1991);
38 C.F.R. § 3.53 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that it has found the appellant's claim to be
"well grounded" within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991). That is, the Board finds that she has presented
a claim which is plausible. The Board is also satisfied that
all relevant facts regarding the claim have been properly
developed.
I. Background
The record reflects that the veteran had established service
connection for a psychiatric condition, paranoid type
schizophrenia. The disability has been evaluated as
100 percent disabling for many years.
In a January 1990 rating action the veteran had been
determined to be incompetent for VA purposes. His mother was
established as his fiduciary for purposes of handling his VA
benefits.
A marriage certificate reflects that the appellant and
veteran underwent a marriage ceremony in the State of
Michigan in November 1994.
In February 1995 the veteran advised the regional office that
he was no longer residing with his mother but was residing
with his wife, the appellant.
In March 1995 the VA district counsel held that the marriage
of the veteran and appellant in November 1994 was invalid
under Michigan law since an adjudicated mentally incompetent
individual could not enter into a valid marriage contract.
A Complaint to Annul Marriage, filed by an attorney
representing the veteran in April 1995 recited that at the
time of the marriage and subsequently, the veteran had been
adjudicated to be a legally incapacitated person by a county
probate court. It was requested that the court enter an
order annulling the marriage of the veteran and appellant.
The veteran was hospitalized at a VA hospital from April to
June 1995. Various findings were recorded. He was found to
be incompetent for VA purposes.
In April 1996 the regional office indicated that the court
had restored the veteran's competency and discharged the
conservator. The VA benefits were made payable directly to
the veteran.
In March 1997 the appellant advised the regional office that
the veteran had been incarcerated that month in the county
jail on various charges. A report by the county jail, dated
in April 1997 reflected that the offense, which was a felony,
had been committed in October 1996.
A Petition for Exclusive Occupancy of Plaintiff's Residence
in Benton Harbor was filed by the veteran on December 4,
1997. The petition recited that a complaint for divorce was
pending between the veteran and appellant. It was indicated
that the veteran owned his residence and that he and the
appellant had only briefly resided in the home together on a
sporadic basis. It was indicated that the appellant had
never made any contributions financially or otherwise to the
home.
It was further related that the veteran and appellant had
separated in March 1996 and the veteran had purchased the
home thereafter. When the veteran was incarcerated in
February 1997 the appellant returned from out of state and
broke into the house. While the veteran was incarcerated the
appellant removed items from the home and wrote checks
against the veteran's account, although she was not
authorized to do so. She also had other people in the house,
including her boyfriend.
A divorce complaint and petition for exclusive occupancy had
been filed in March 1997 to prevent further damage to the
veteran's home and a hearing had been held before the family
court judge later that month. An order granting the veteran
exclusive occupancy of the home was entered. Between March
and November 1997 the veteran remained in the county jail and
forensic center while criminal charges were pending.
Throughout that period he retained exclusive occupancy of the
marital home and the appellant did not reside there or make
any contributions to the home.
The parties appeared before a judge in November 1997 and
stipulated to dismissal of the complaint for divorce which
thereby also dissolved the temporary order regarding the
home. The appellant had promised the veteran that she would
remain with him and make the marriage work. Instead, she had
abandoned the home and had spent some of the veteran's VA
benefits on gambling. It was stated that the appellant had
not kept her agreement regarding the marriage and had only
used the veteran in an attempt to obtain a place to live.
The appellant had no possessory or other interest in the
veteran's home whatsoever. The episodes of the veteran and
appellant residing together had been marked by police
involvement and episodes of violence. The veteran was on
probation for an unrelated offense. The situation of having
the veteran and appellant reside in the same house was too
volatile to be safe or peaceful. The veteran therefore asked
that the court enter an order granting him exclusive
occupancy of the marital residence.
The veteran's death certificate reflects that he on
December [redacted], 1997, as a result of a self-inflicted gunshot
wound to the head. The place of death was listed as the St.
Joseph Medical Center, St. Joseph City.
In January 1998 the appellant submitted a claim for VA death
benefits as surviving spouse of the veteran. She listed her
residence as the veteran's home in Benton Harbor. She
recited that she and the veteran had each been married once,
to each other, in November 1994 and that the marriage had not
been terminated. No child had been born of the marriage.
She claimed that she and the veteran had resided together
continuously from the date of the marriage until the date of
the veteran's death.
In a rating action dated later in January 1998 service
connection was established for the cause of the veteran's
death.
In March 1998 the VA Regional Counsel indicated that the
veteran had attempted to marry the appellant in November 1994
and that the marriage had been determined to be invalid for
VA purposes by the District Counsel in March 1995. It was
found that the appellant and veteran had separated in March
1996 and that the County Probate Court had ruled that the
veteran was competent sometime in 1996. A divorce complaint
had been filed in March 1997. The appellant had allegedly
entered the home of the veteran that he purchased after their
separation and she and her new boyfriend had stolen a number
of items from the home. The divorce complaint had been
dismissed in November 1997. It was concluded that the
appellant had violated the terms of the dismissal and
dissipated the assets of the veteran. The veteran had filed
a petition that was pending at the time of his death granting
him exclusive occupancy of the property. It was noted that
the appellant had currently reoccupied the residence of the
veteran in Benton Harbor. She had never been on the deed and
the veteran had been attempting to permanently exclude her
from the property when he died. It was held that there was
no legal basis for recognition of the appellant as the
surviving spouse of the veteran. The only way she could have
been recognized as his spouse according to Michigan law was
if she had married the veteran after the county probate court
found him competent in 1996.
In December 1998 the appellant testified at a hearing at the
regional office. She related that the complaint for
annulment of her marriage to the veteran has been issued by
his mother. She alleged that the veteran had not been in
agreement with the complaint. She noted that the complaint
for annulment had been dismissed. She testified that she and
the veteran thereafter continued to live together as husband
and wife. She claimed that they had lived in her mother's
home for over six months.
II. Analysis
To be entitled to death benefits as a "surviving spouse" of a
veteran, the claimant must have been the veteran's spouse at
the time of the veteran's death and had lived continuously
with the veteran from the date of their marriage to the date
of the veteran's death, except where there was a separation
due to the misconduct of, or procured by, the veteran without
the fault of the spouse. 38 U.S.C.A. § 101(3).
The requirement that there must be continuous cohabitation
from the date of marriage to the date of death of the veteran
will be considered as having been met when the evidence shows
that any separation was due to the misconduct of, or procured
by, the veteran without the fault of the surviving spouse.
Temporary separations which ordinarily occur, including those
caused for the time being through fault of either party, will
not break the continuity of the cohabitation. 38 C.F.R.
§ 3.53(a).
The statement of the surviving spouse as to the reason for
the separation will be accepted in the absence of
contradictory information. If the evidence establishes that
the separation was by mutual consent and that the parties
lived apart for purposes of convenience, health, business, or
any other reason which did not show an intent on the part of
the surviving spouse to desert the veteran, the continuity of
the cohabitation will not be considered as having been
broken. 38 C.F.R. § 3.53(b).
The evidence reflects that the veteran and appellant
underwent a marriage ceremony in the State of Michigan in
November 1994. However, the veteran was considered
incompetent at that time by the State of Michigan and the VA.
The VA District Counsel issued an opinion in March 1995 that
the attempted marriage of the veteran and appellant was
invalid under Michigan law. A state county court did restore
the veteran's competency in 1996; however, the veteran and
appellant did not remarry after that time. In April 1998 the
VA Regional Counsel issued an opinion that the November 1994
marriage of the appellant and veteran was invalid. Thus, the
legality of the November 1994 marriage has not been
established in this case.
The record further discloses that in a petition for exclusive
occupancy of the veteran's residence filed shortly before his
death in December 1997, it was recited that the veteran and
appellant had separated in March 1996. The veteran had
thereafter purchased his home and he and the appellant had
only briefly resided in the home together on a sporadic
basis. The appellant indicated in her January 1998
application for VA death benefits that she and the veteran
had resided together continuously from the date of their
marriage until the date of his death. She provided similar
information at the December 1998 hearing on appeal. However,
the Board finds the information set forth by the veteran in
the December 1997 petition for exclusive occupancy of his
residence to be the more plausible. The Board does not find
the information provided by the appellant in her January 1998
application and at the December 1998 hearing to be credible.
In view of the foregoing, the Board concludes that the
appellant and veteran separated in March 1996 and did not
thereafter reside together except for brief periods. The
evidence indicates that they were separated at the time of
his death. In order to establish entitlement to recognition
as surviving spouse of the veteran for VA purposes, it is
necessary that the appellant be without fault in causing the
separation between herself and the veteran. In this regard,
the U.S. Court of Appeals for Veterans Claims has held that
the question of fault or absence of fault is to be determined
based on an analysis of the parties' conduct at the time of
the initial separation. Gregory v. Brown, 5 Vet. App. 108
(1993).
The December 1997 petition for exclusive occupancy of the
veteran's residence further recited that after the veteran
was incarcerated in early 1997 the appellant returned from
out of state and broke into his home. While he was
incarcerated she removed items from the home and wrote
unauthorized checks against his account. She had other people
in the house, including her boyfriend.
A divorce complaint and petition for exclusive occupancy had
been filed in March 1997 to prevent further damage to the
veteran's home and an order granting the veteran exclusive
occupancy of the home had been entered by a family court
judge. The parties appeared before a judge in November 1997
and stipulated to dismissal of the complaint for divorce;
that also dissolved the temporary order regarding the home.
It was noted that the appellant had promised the veteran that
she would remain with him and make the marriage work and
instead she had abandoned the home and spent some of the
veteran's VA benefits on gambling. It was indicated that the
appellant had not kept her agreement regarding the marriage
and had only used the veteran in an attempt to obtain a place
to live. The court documents and corroborating information
of record contradict the statements of the appellant and
clearly and convincingly establish that the appellant was at
fault in the separation between herself and the veteran.
Since she was not without fault in the separation between
herself and the veteran, she is not entitled to recognition
as surviving spouse of the veteran for purposes of VA death
benefits. 38 U.S.C.A. § 101; 38 C.F.R. § 3.53. The Board
would further note that this conclusion precludes the
appellant from recognition as the surviving spouse of the
veteran, even if she could be recognized as his "deemed
valid" widow; an issue which is not necessary for the Board
to consider or decide in this decision.
The Board has carefully reviewed the entire record in this
case; however, the Board does not find the evidence to be so
evenly balanced that there is doubt as to any material issue.
38 U.S.C.A. § 5107.
ORDER
Entitlement of the appellant to recognition as the surviving
spouse of the veteran for the purpose of Department of
Veterans Affairs death benefits is not established. The
appeal is denied.
ROBERT D. PHILIPP
Member, Board of Veterans' Appeals